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Tuesday, February 16, 2016

Supreme Court sweep stakes

A few observations on the court crisis:

i) Historical precedent is obsolete because the role of the judiciary has changed dramatically since the Warren Court. Nowadays, judges often act as super-legislators, self-appointed national policymakers. Since judges changed the rules by unilaterally rewriting their job description, the Senate is entitled to change the rules regarding the judicial nomination process.

ii) This is about whether we have a Bill of Rights. Whether we have separation of powers. Whether we have Federalism. Whether we have representative democracy. Whether we have popular sovereignty. Whenever we have consent of the governed.

iii) With only 8 justices, in case of tie votes the lower court ruling prevails. Whichever party won in the lower court.

That's bad insofar as Obama has had 7 years to pad the Federal judiciary with liberal appointees. However, that's still far better than confirming an Obama nominee to the Supreme Court. That would shift the balance of power on the Court for a generation or more.

In addition, lower court rulings don't set national precedent, unlike Supreme Court rulings. And bad lower court rulings–during the vacancy–can be appealed and overruled if we are able to replace Scalia and other retirees with conservatives.

iv) In addition, I believe the Supreme Court could stay lower court proceedings–at least in some high profile cases–until a new Justice is sworn in. Or hold over a case until next year.

v) Of course, this is a strategy to play out the clock until Obama leaves office. And it buys time for Cruz or Rubio, if one of them is elected.

If, on the other hand, Trump, Bernie, or Hillary is elected, then Senate Republicans will be in a much weaker position. But we can only cross one bridge at a time. And there may not be a second bridge.

vi) If Senate Republicans have no intention of confirming an Obama nominee, it would be dumb for them to hold hearings. That would be a wedge for the nominee. Moreover, the Senate has no Constitutional duty to hold hearings on a nominee.

vii) It might be objected that if Republicans use this tactic, Democrats will return the favor when the situation is reversed. But it's not as if Democrats believe in fair play. Indeed, Senate Republicans have been rolled by the Senate Democrats in the past due to naive notions of fair play that are not reciprocated.

viii) There's the question of political jeopardy. Do Republicans risk losing control of the Senate if they leave the seat vacant until next year, by snubbing Obama's nominee?

I suppose that's possible. I don't have a crystal ball. But to begin with, sometimes you have to take a political risk. There's no point having power if you're afraid to use it. Moreover, there's the risk of losing your power if you're too timid to use it.

ix) But it isn't clear to me that this is politically hazardous. It poses a dilemma for Democrats. Sure, they can try to make the Supreme Court vacancy the centerpiece of the national campaign. But that cuts both ways. The more they elevate this issue, the more they remind Republicans and libertarians of what's at stake.

If Democrats make the Supreme Court a big issue in elections, they hand that issue to Republican candidates. By making the case for why it's all-important to have the Supreme Court in Democrat hands, they are simultaneously broadcasting to Republican and libertarians voters why it's all-important to keep the Supreme Court out of their clutches.

x) There's an ironic sense in which both Bernie and Hillary ought to support the Republican stalling tactic. After all, both of them are vying to replace Obama. They'd rather nominate Scalia's successor than have Obama do it.